In light of the COVID-19 public health emergency (Pandemic), on April 2, 2020, Governor Brad Little of Idaho issued a proclamation (Proclamation) that suspended 18 regulations (in addition to the 125 previously suspended administrative regulations) to increase access to telehealth and enable medical professionals to obtain necessary licenses more seamlessly in an attempt to better position the state to respond to the Pandemic.

By way of background, Idaho enacted the Idaho Telehealth Access Act in 2015. The Idaho Telehealth Access Act provides the standards of telehealth practice in Idaho, including defining telehealth services, the requirements for forming and sustaining the patient-provider relationship, and prescribing via telehealth. In March 2020, the Idaho State Legislature passed House Bill No. 342, which amended the Telehealth Access Act with several significant changes, including:

Defining telehealth technologies as “synchronous or asynchronous telecommunication technologies capable of assisting a provider to deliver patient health care services, including but not limited to assessment of, diagnosis of, consultation with, treatment of, and remote monitoring of a patient; transfer of medical data; patient and professional health-related education; public health services; and health administration;”

Deeming both two-way audio and audio-visual interaction sufficient methods for establishing a provider-patient relationship; and

Making a patient’s home an acceptable originating site for the purposes of telemedicine.

Although the law addresses important barriers to the delivery of telehealth, the law does not become effective until July 1, 2020.

Under the Proclamation, Governor Little suspended various sections of the currently effective Telehealth Access Act, including 54-5705 and portions of 54-5707. Section 54-5705, which required a provider to establish a provider-patient relationship by using two-way audio and visual interaction, is completely suspended, while 54-5707, which regulates prescribing, is partially suspended.

Prescribing

In accordance with the Proclamation, providers may, during the Pandemic, issue prescription drug orders using telehealth services within the scope of the provider’s license to the extent that the prescribing complies with federal laws and health and human services guidance related to COVID-19. Generally, under 54-5707, the provider may not prescribe controlled substance unless prescribed in compliance with 21 US.C. § 802(54)(A), which requires that the patient be treated and physically located within a DEA-registered hospital or clinic and that the patient be treated by a DEA-registered practitioner. The Proclamation suspended the limitations imposed by 21 U.S.C. § 802(54)(A), and, in connection with the HHS enactment of a “public health emergency” per 21 U.S.C. § 802(54)(D), prescribing controlled substances by a DEA-registered health care provider via telemedicine to a patient who is at home is permitted as long as all other state and federal controlled substance prescribing laws are followed.

As we have discussed previously, the Drug Enforcement Administration recently published a COVID-19 Information Page on the Diversion Control Division website that includes expanded access to telehealth by allowing DEA-registered practitioners in all areas of the United States to issue prescriptions for all schedule II-V controlled substances to patients for whom they have not conducted an in-person medical evaluation, provided all of the following conditions are met:

The prescription is issued for a legitimate medical purpose by a practitioner acting in the usual course of his/her professional practice;

The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system; and

The practitioner is acting in accordance with applicable Federal and State laws.

Therefore, Idaho practitioners may now prescribe controlled substances via telehealth as long as they comply with Federal law and Health and Human Services Federal guidance related to the Pandemic.

Licensure

Additionally, Governor Little has suspended licensing requirements for treating patients in Idaho. For the duration of the Pandemic, MDs, DOs, PAs, and RTs holding a license in good standing from another state or country are permitted to treat patients, including via telehealth, in Idaho without securing an Idaho license. Out-of-state physicians may also supervise physician assistants practice in Idaho, so long as they complete the COVID-19 Modified Supervising Physician Attestation form. Similarly, Idaho is allowing RNs or LPNs with an active, unencumbered license in any state to work or practice telehealth in Idaho without applying for a corresponding Idaho license.

For more information, please contact your Foley relationship partner or the Foley colleagues listed below. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the websites of the CDC and the World Health Organization.

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